GM's use of Albert Einstein image was 'tasteless,' but not illegal, judge finds

However "tasteless" it might have been for General Motors to use Albert Einstein's image in a car advertisement, it wasn't illegal, a federal judge in Los Angeles ruled this week.

In his 16-page ruling, Judge A. Howard Matz of the U.S. District Court found it's been too long since Einstein's 1955 death for anyone to limit the use of his likeness.

The ruling came in a lawsuit filed by Hebrew University of Jerusalem, which claims to control Einstein's rights of publicity because it was a beneficiary in his will.

GM used an altered image of Einstein in a 2009 ad for the GMC Terrain, a sport utility vehicle.

The ad, which ran only once in People magazine, showed Einstein's face pasted onto a muscular body with an "e=mc " tattoo. It carried the slogan "Ideas are sexy too."

Hebrew University sued in 2010, arguing GM had no right to Einstein's image and the university should be able to win damages from the automaker.

But the judge said descendants' right to control someone's image after his death must be balanced with the public's right of expression.

He also Matz ruled any right Hebrew University had to sue expired in 2005 - 50 years after Einstein's death, because that was the limit on copyright law in 1982, when Hebrew University acquired Einstein's right of publicity.

"A maximum 50-year postmortem duration here would be a reasonable middle ground that is long enough for a deceased celebrity's heirs to take advantage of and reap the benefit of the personal aspects of the right," wrote Matz, who ruled on the case without a trial.

Copyright law does not govern the right to control publicity, but courts can use it as a guide, Matz said.

In court, the university argued that how someone's image is used is a deeply personal issue and that people have a right to "dignity and autonomy."

"Surely, however, the personal interest that is at stake becomes attenuated after the personality dies," Matz wrote.

At another point in the ruling, he wrote: "The obviously humorous ad for the 2010 Terrain having been published 55 years or more after Einstein's death, it is unlikely that any viewer of it could reasonably infer that Einstein or whoever succeeded to any right of publicity that Einstein may have had was endorsing the GMC Terrain."

GM bought a license to the original photo from Getty Images.

Representatives from Hebrew University could not be reached Wednesday, and GM spokesman Alan Adler said the company and its lawyers had no comment.

The case focused on federal copyright law, a publicity statute in California and common law in New Jersey, the state where Einstein died and where he lived before that.

Hebrew University, home of the Albert Einstein Archives, argued the court should apply federal copyright law, which protects works for 70 years after copyright holders' deaths. But that term was only extended from 50 to 70 years in 1998.

The university filed the lawsuit in California, where a state law gives a postmortem right of publicity to people's beneficiaries for 70 years. But Matz said California law is irrelevant since Einstein did not live here.

The judge said New Jersey's Legislature and courts haven't addressed exactly how long a postmortem right of publicity lasts in that state since it exists only in common law, rather than in written statutes.

Hebrew University asked the court to find there is an indefinite right in New Jersey law to control publicity, or at least one that lasts for 70 years after someone's death.

The court declined, saying that would set a dangerous precedent and limit First Amendment rights.

"The Ninth Circuit (a federal appeals court) recently noted that Marilyn Monroe considered herself to belong `to the Public and to the world,' " Matz wrote. "There is no evidence that Albert Einstein saw himself that way, but he did become the symbol and embodiment of genius. His persona has become thoroughly ingrained in our cultural heritage. Now, nearly 60 years after his death, that persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads."